36 F. 716 -

36 F1d 716

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Case Text

716..

REPORTER·

NEW

HAVEN STEAM-BoAT CO. "'. THE MAYOR,

etc!

(District Oourt. S. D. New York. October 3, 1888.)
l. COLLISION-MEASURE OF DAMAGES-SURVEY AND SUPERINTENDENCE. The cost of surveying- the injuries done to a vessel by collision, and of su· perintending thJ repairs, when necessary to the economical prosecution of the work. is allowable as an item of the collision damages. A superin tendence on behalf of the libelant and a separate superintendence in the interests of the insurer are, however, unnecessary. and the charge for but one will be allowed. 2. SAME-DEMURRAGE-SPARE BOAT-AMENDMENT OF LlllEL. A ship·owner is entitled to demurrage for the period during which his boat, injured by collision, is being repaired. though a spare boat, belonging to the Same owner, is used as a substitute during the detention.' Amendment of libel to increase claim for demurrage denied, when the facts were known. and the claim as pleaded had been twice before ,verified on oath. and the amendI,: went was not asked till after trial and apportionment of damages.S4ME-,-WAGES OF CREW.

8.

The wages of crew, necessarily kept On the injured vessel while she ilJrepairing, are also part of the damage. ' ,

;'\

"fnAdmiralty. On exceptions to commissioner's report· .' Wilcox,Adams & Macklin, for libelant. Joseph H. Mo.mf!Jl', for respondent.
:BROWN, J. 1. Survey and Superintendence. In making up the damages by collision, the cost of surveying the injured vessel, and of superintendingthe repairs, is allowed when the survey and superintendence are reasonably necessary to the economical prosecution of the work. ,To that extent such charges are incurred in the interest of all concerned. If unnecessary, the charge is not allowed. The Golden' Rule, 20 :It'ed. Rep. 198. F'rom the nature of the injuries to the Continental, it is plain that &; prelimi,nary examination and survey were necessary before commencing those repairs, and a proper charge therefor shollld be allowed. Sawyer 7 Blatchf. 290, 30o; The City of Cht$ter, 34 Fed. Rep. 430. This 8\lrvey, however, did not include specific details of the work to be done. The repltirs weretrJade by day's work. The libelant had a superintendent who attended to the work daily in its behalf, and its insurers sent other'men, who also superintended the work in their interest, and: acted .in .conjunction with the libelant's superintendent.' The libelant paid the,charges of the insurer's superintendents.. The respondent obto on the ground that they acted in the interest of the' insurers, a.ud for their satisfaction only, and were not necessary to the Work,.i It is often-to the interest of the ship-owner, in repairing collision damages"to .conjoin with it other work, or to do the repairs in some other' modecthan in the manner most economical, having reference to the coland in many cases itis a matter of skilled judgment, not easy to determine, just how far the work should extend, or in :what'; way it should be done, to make good the injury, and no more. Constant
1 Reported

by Edward G. Benedict, Esq., of the New York bar.

NEW HAVEN STEAM-BOAT CO. V.1HE MAYOR.

717

experience in the adjustment of collision damages shows the practical difficulties that often arise in these ways. The interest of the ship-owner is often opposed to that of his insurer, and of the wrong-doer, who is . bound to indemnify both; while the interests of the two latter, in securing an economical repair of the specific injuries, and no more, are identical. An independent superintfmdence in their interest will often save many times its cost. No prudent person, knowing that he must pay The the damages, would fail to take such a precaution, if in his insurers are in a position to enforce this precaution, and to exact payment for the service by the ship-owner. This service is, as a rule, so beneficial, and often practically so necessary, to economy in repairs, that when paid as in this cade, there is no equity in disallowing it. for by the lt should be treated as an expense practically necessary to the most economical repair of the vessel, of which the wrong-doer has enjoyed the full benefit in the diminished cost of the repairs. There is no evidence, how. ever, to show that more than one surveyor one independent sl\perin,.; tendent was necessary. Therefore I allow the full charge for the one, apq disallow the charge for the other. The Vep.U8, 17 Fed. Rep., 92,5; , Olive Baker, (July 10, 1888,) MS. l 2. Demurrage. The Continental being disabled 'by collision from tinuing her trips, the Elm City, belonging to the same company, wail stituted in her place. The latter was a "l'1i.ster-b()at" to the Contiqenl{al, of the same size, but much older, slowe.r, and of less value. She wafjl kept by the libelants as a spare boat, for.the purpose, in part, as appears of continuing the trips of the line with regularity, in from the case of accident to one of the. regular. boats, or d\Iring their She was also occasionally let out for excursions., and upon special charters, 1)emurrageat $250 per day is allowed by tbecommissioner for 15 days, while the Continental was undergoing repairs. The respondent contends
'WILLIAMS et al. v. TIiE OLIVE BAKER. ,(District Court, S. D. New York. July 10,1888.)

Owen &: Gray, for libelants. Cwrpenter &: M08her, for claimants.
BROWN, J. The fact that after the decision holding the libetant's vessel in fault, as well as the claimant's, the damages claimed on the reference before the commissioner are from two to three times the amount stated in the libel, naturally raises snspteion as to the good faith of some of the items presented on the reference. This suspicion is.t«;l some extent confirmed by the failure of any specific proo'fto connect the items with the injury, or to show just how they were necessarY,or e;ven used. I am not satist!edi under these circumstances, with mere general statements that they wereall,tJ,e.cessary. There is,lndeed, no such proof of fraud as existed inthe case of The Sampson, 4, Blatchf.28, 30; bllt more satisfactory proof ought to be furnisnlld to admit items .that do not seem. necessary. I deduct $71.31 in .addition to that disallowed by tl1e· comr missioner; $5 saved'in towage; $15 for survey, since no use was made of itin doi:tJ:gthe repairs, (Sawyer v. Qakham,7 290·. 306 ;)and· allow IS days' de:murrag6j :at tM rate of $30 per day only; which. for a continuous period, without expense to the owner is in reality a liberal allowance for the "use" of the vessel.alone.' I greatly doubt'that. the vessel eVllll that. The services rendered to thel;lchooner aster were more thpu were necessary for her safety, so far as the evidence shows. they were an expense reasonably incurred in consequence· of the· collision, then' they tl!tould com.e jp. with tl1e other damages, and ..lytl.iyided. Tl\e refere.e'lil. ruli.n.g. .. is sustained on this point. The result,is that the amount· reported must be reduced $211.6.'5,leaving·$l,151l.52 due to the With iiltel'esHromJune 20,·1688, andWitll one-half tlu;J ·. Thec}aiIlla;nt's!lxcellgoPs .. .. . ..; "._.:'